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Wednesday, July 24, 2013

Federal prosecutors say there is probable cause to forfeit an Assyrian head from Iraq, allegedly smuggled into the United States in 2008. The government filed a verified complaint for forfeiture on July 18, 2013, but a federal district court magistrate in New York authorized the seizure of the head five years ago. No explanation is given in the prosecution's current complaint about the time delay.

The government's claim for forfeiture is based on arguments that the head is stolen Iraqi cultural property, that it was unlawfully imported in violation of U.S. law, and that it was imported on the basis of false statements regarding its country of origin and its value.

Assistant U.S. Attorney Sharon Cohen Levin, asset forfeiture unit chief in the southern district of New York, describes the government's investigation in court papers filed in United States v. One Iraqi Assyrian Head (13-CV-5015). She writes:

"In or about 2008 law enforcement agents from Immigration and Customs Enforcement/Homeland Security Investigations, Department of Homeland Security (“ICE”) commenced an investigation of an antiquities dealer in Dubai, United Arab Emirates, named Hassan Fazeli (“Fazeli”), who was suspected to be smuggling antiquities into the United States.

"During the course of the investigation, in or about 2008, law enforcement agents learned that Fazeli engaged in a transaction to sell the Defendant Property to a purchaser in New York. ICE agents further learned that Fazeli had advised the purchaser that the Defendant Property was from Iraq, but that Fazeli would list an incorrect country of origin on the United States Customs importation documents. Fazeli acknowledged to the purchaser that he often listed 'Turkey' as the country of origin on United States Customs importation documents because he had Turkish papers he could use.

"Pursuant to records maintained by the United States Customs and Border Protection, Department of Homeland Security, Fazeli has, on at least two prior occasions, incorrectly listed “Turkey” as the country of origin for shipments of Egyptian antiquities.

"On or about July 30, 2008, Fazeli exported the Defendant Property from the United Arab Emirates to the United States (the “Shipment”).

"The United States Customs importation documents, submitted by Fazeli and accompanying the Shipment (the “Importation Documents”), incorrectly lists the country of origin for the Defendant Property as Turkey.

"The Importation Documents also incorrectly list the value of the Defendant Property as $6,500. The Defendant Property has been appraised at $1,200,000.

"On or about August 12, 2008, United States Magistrate Judge Henry B. Pitman, Southern District of New York, issued a seizure warrant finding that probable cause existed to seize and forfeit the Shipment, which contained the Defendant Property.

"On or about August 13, 2008, ICE agents seized the Shipment which contained the Defendant Property. The Defendant Property is currently in the possession of Customs and Border Protection, Department of Homeland Security."

The forfeiture case is a civil in rem action against the cultural object and not a court action against any person. A check of both federal and New York state judicial dockets reveals no pending criminal case against Fazeli.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

CPIA import restrictions prohibit designated archaeological and ethnological objects from entering the United States. The prohibitions serve to safeguard endangered cultural heritage. Once the President determines that specific cultural material originating in a foreign nation is in jeopardy of pillage, protective import controls are put in place. U.S. Customs and Border Protection (CBP) agents are given authority to detain, seize, and forfeit the protected cultural objects. Should an importer choose to challenge a CBP decision, there may be a question about which court can hear the case depending on how one understands an "embargo."

U.S. Court of International Trade

The Court of International Trade (CIT), based in New York, possesses national jurisdiction over what its title suggests, namely international trade. The CIT is given exclusive jurisdiction by Congress under 28 U.S.C. § 1581(i)(3) over embargo enforcement actions covering "embargoes or other quantitative restrictions on the
importation of merchandise for reasons other than the protection of the
public health or safety." What constitutes an embargo is outlined by the U.S. Supreme Court's decision in K Mart Corp. v. Cartier, Inc., 485 U.S. 176, 185, aff’d in relevant part, rev’d in part, 486 U.S. 281 (1988), which explains that “the ordinary meaning of ‘embargo,’ and the meaning that Congress apparently adopted in the statutory language ‘embargoes or other quantitative restrictions,’ is a governmentally imposed quantitative restriction--of zero--on the importation of merchandise.” Congress, meanwhile, has also empowered all 94 federal district courts under 28 U.S.C. § 1356with jurisdiction to hear import seizure cases. The district courts' decisions have the force of law over their designated geographic areas.

In the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection Agency, Department of Homeland Security et al., the ACCG filed a lawsuit challenging import restrictions on ancient Chinese and Cypriot coins in federal district court in Maryland. But Smithweiss points out, "It is quite possible that a district court could conclude that 19 U.S.C. § 2602 [the CPIA] imposes an embargo, in which case the CIT might properly exercise jurisdiction over an action challenging an admissibility decision [on the importation of cultural property] made pursuant to that statute." In fact, the federal district court itself questioned whether it had authority to hear the ACCG's lawsuit. The court concluded that it did, writing that its subject matter jurisdiction over "any seizure" was rooted in 28 U.S.C. § 1356, despite the tension raised by the CIT's exclusive jurisdiction over embargoes found in 28 U.S.C. § 1581(i). The fact that neither the government nor the ACCG objected to the federal district court's authority to hear the ACCG's legal challenge almost certainly helped the court reach the conclusion that the parties did not need to go to the CIT to resolve their differences. However, it is possible that another court would reach a different result.Indeed, Tosini educates us about what has happened in the realm of endangered species, and his observations should offer parallels with regard to the protection of archaeological and ethnological objects in jeopardy of pillage. Import restrictions rooted in the Endangered Species Act (ESA) and similar laws that protect threatened wildlife, flora, fauna have been
found to amount to embargoes. As a result, the Court of International
Trade has been identified as the court possessing jurisdiction to hear several
cases in this area. Tosini reflects:

There is currently significant confusion in the environmental arena, and even the splitting of jurisdiction within certain statutory schemes. Accordingly, although the Government may be subject to suit in the Court of International Trade, individual defendants would be sued in the district courts. Furthermore, some actions that involve international trade and commerce are relegated to district courts, whereas identical actions involving ESA-listed species may wind up before the Court of International Trade. Should there ultimately be a larger number of such cases, this confusion will only compound.

Tosini recommends that Congress clarify these jurisdictional issues. He favors outcomes that leave matters of “classification, valuation or rate of duty” to the CIT and that give "district courts ... exclusive jurisdiction with respect to environmental laws relating to the importation of wildlife."

There may not be enough cultural property cases winding their way through the judicial system to spark interest about whether CPIA's import prohibitions amount to an embargo. But the topic deserves consideration. That is because future litigants will undoubtedly confront the issue. For example, what if a CBP seizure of an archaeological artifact in Chicago compels a claimant to file a civil action 800 miles away in the CIT rather than at the local courthouse sitting in the northern district of Illinois? Will that distance deter the legal action? Or what if a federal district court in Wyoming hears a cultural property import case of national significance? Should the federal court's decision simply be cited authoritatively in the "Cowboy State" alone, or should the decision instead be made by the CIT, which has national authority? Alternatively, shouldn't a local CBP decision made at the Natrona County Airport in Casper be reviewed by a federal judge sitting in Cheyenne?

Of equal importance is the framing of cultural heritage policy discussions. The K Mart decision identifies an embargo as a restriction that protects public health, safety, or morality or that advances foreign affairs, law enforcement, or ecology. In contrast, we might call an import restriction that is not "a governmentally imposed quantitative restriction--of zero--on the importation of merchandise" a non-tariff barrier. There are those at one edge of the cultural property spectrum who view import restrictions on archaeological material from the perspective of trade regulations that govern consumer products in the marketplace. This view considers how import prohibitions could adversely affect U.S. art and antiquities sellers by denying dealers and auction houses the opportunity to trade in goods that may be bought and sold by consumers elsewhere. Proponents of this viewpoint might describe CPIA import restrictions as being part of a broader range of trade regulations codified under Title 19 - Customs Duties. Defining CPIA import restrictions as non-tariff barriers may advance this line of reasoning. At the other end of the spectrum are those who see import prohibitions on archaeological artifacts as protective measures designed to safeguard culture and preserve historical and scientific evidence contained within archaeological sites. This viewpoint focuses on curtailing illegal antiquities trafficking, preserving archaeological evidence, and protecting culture from looting and vandalism. And calling CPIA import protections an embargo may advance this argument in policy discussions.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Wednesday, July 3, 2013

It is noteworthy when a claimant steps forward to challenge a cultural property forfeiture complaint filed in federal district court. It does not happen often. But it happened yesterday when lawyers for Jean Combe Fritz filed a petition to recover Peruvian objects seized at Miami International Airport in Florida.

Many forfeiture cases are rooted in the claim that cultural property was brought to the United States in violation of a federal criminal law. That can alarm claimants who may find it easier to walk away from the allegedly stolen or smuggled goods rather than risk facing potential criminal charges or paying expensive lawyers' fees. The dinosaur forfeiture case of Eric Prokopi is a good example of a claimant's forfeiture challenge resulting in a criminal conviction.

Where the government alleges a violation of a Convention on Cultural Property Implementation Act (CPIA) import restriction, claimants may feel that they are on sturdier legal ground to make an ownership claim. There is a strong argument that CPIA seizures and forfeitures allow for the added remedy of a criminal prosecution against an individual wrongdoer, and U.S. v. Perez is a supporting case. But there is a competing view that the CPIA's civil remedy of forfeiture is exclusive, precluding possible criminal prosecution.

U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts from Peru is one forfeiture case based on a violation of the CPIA. Combe Fritz says the Peruvian objects are his, and he has filed a pleading in the southern district of Florida to reclaim the cultural goods seized by customs authorities. We shall watch to see what happens next.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

The illegal trade in
cultural heritage is a transnational, for-profit business that
depends on moving looted objects to the market. The number of Egyptian
cultural objects smuggled into the U.S. remains unknown. What is known is that
the United States is a significant consumer of Egyptian cultural artifacts. Last year
nearly 14% of all archaeological, historical, or ethnographic objects imported
for consumption into the U.S.--as a percentage of the total customs value of
all such imports--came from Egypt, making The
Land of The Pharaohs the third top supplier of declared cultural goods entering
America.

Just as Congress passed legislation
targeting plundered Iraqi heritage, lawmakers should adopt similar legislation
authorizing the President to implement emergency import protections covering
at-risk Egyptian cultural heritage. Its
language could mirror the language of the Emergency Protection of Iraqi
Cultural Antiquities Act:

SHORT TITLE

Emergency Protection of
Egyptian Cultural Antiquities Act

EMERGENCY IMPLEMENTATION OF IMPORT
RESTRICTIONS.

(a) AUTHORITY- The President may exercise the authority of the President under
section 304 of the Convention on Cultural Property Implementation Act (19
U.S.C. 2603) with respect to any archaeological or ethnological material of
Egypt without regard to whether Egypt is a State Party under that Act, except
that, in exercising such authority, subsection (c) of such section shall not
apply.

(b) DEFINITION- In this section, the term `archaeological or ethnological
material of Egypt means cultural property of Egypt and other items of
archaeological, historical, cultural, rare scientific, or religious importance
illegally removed from locations in Egypt since [date to be agreed upon].

TERMINATION OF AUTHORITY.
The authority of the President under section 3002(a) shall terminate five years
from the date of enactment.

The passage of the
Emergency Protection of Egyptian Cultural Antiquities Act would heighten
American attention to the increasing cultural heritage crisis in Egypt and give federal law enforcement an additional toolto stop
antiquities trafficking at the border.

Photo credit: exkrupier

This post is researched, written,
and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com.
Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney &
Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this
post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

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